' MUHAMMAD JAFFAR NAIM, J.-This is a petition under section 115, C. P. C. In which the petitioner has challenged the judgment and decree of Kazi Muslim Bagh dated 4th April, 1983, and the judgment of Majlis-e-Shoora Quetta dated 22-3-1984. The facts of the case are that the respondent Mst. Bibi Amina the wife of the petitioner had filed a suit for dissolution of marriage in the Court of Assistant Commissioner Muslim Bagh which was referred to the Kazi Muslim Bagh for trial under the provisions of Baluchistan Civil Disputes (Shariat Application) Regulation, 1976. The Kazi Muslim Bagh on the basis of an agreement dated 17-5-1982 between the parties appointed four arbitrators. The arbitrators submitted an Award on 2-6-1982, which is Annexure 'D' and the Kazi pronounced a decree of dissolution of marriage between the parties on the grounds of Khula'. The petitioner filed an appeal to the Majlis-e-Shoora which was dismissed.
2. The petitioner's counsel urged that the matter of dissolution of marriage could not be referred to Arbitration and secondly that the arbitration proceedings were not proper. The case was initially heard by a single Judge and later on it was referred to a Division Bench under the order of the learned Chief Justice on the point as to whether matrimonial dispute could be decided by reference to arbitration or not.
3. The learned counsel of the petitioner had failed to point out any provisions of law by which such reference would be barred. He relied upon two cases of Lahore and Karachi. In the case of Abdul Omni v. Mst. Sardar Begum (1) the Head Note was as under.
"In the case of a suit for dissolution of marriage by the wife under the Act, it is the Court which has to perform the functions of a Qazi and it is the pronouncement of the Court which dissolves the marriage and that function cannot be delegated by the Court to anyone else either by arbitration or even by accepting the statement of a witness even with the consent of parties at least on an immaterial point in the case. The Court must decide the suit itself and in no other way except on a consideration of the evidence led in the case.
' In this case there is a casual reference to arbitration. The facts were that the Court had decided the case on the statement on oath on Holy Qur'an made by a witness and it was held that it was wrong for the Court to decide the case on oath of one of the plaintiff's witness and the Court should have considered the case on the entire evidence of the parties on the issues. This case is not a direct authority on the point involved in the present case. In the case of Muhammad Suleman v.
Qadir Bakhsh (2) the relevant observation appears in paragraph 12 on page 333 which was as under :- "But this principle has no application in the present case. It is admitted by both the parties that the matrimonial question could not be (1)AIR 1945 Lah. 183 (2) PLD 1965 Kar. 326 the subject-matter of any decision by the arbitrators. It was, therefore, open to the petitioners to have recourse to a Court of competent jurisdiction for adjudication upon the matrimonial question between the females of the two families. I would, therefore, repel this contention."
' This observation was made by Waheeduddin Ahmed, Judge as he then was on the admission by the contending parties and it was held that matrimonial question between two females could not be referred to Arbitration. That was not a suit between husband, and wife.
4. The learned counsels assisting the Cowl as Amicus curiae have contended that matrimonial disputes could be decided by reference to Arbitration, especially in the present case. The position regarding law on this point in the tribal areas of Baluchistan in a little different from that of the rest of the country on account of coming into force of the Balpchistan Civil Dispute (Shariat Application) Regulation of 1976. Before coming into force of the West Pakistan Muslim Personal Law (Shariat Application) hereafter referred as Act of 1962. Muslim Personal law was applied to the cases regarding marriage, divorce etc. In the case where the parties were Muslims as a matter of policy. The Act of 1962, was not applicable to tribal areas and there civil disputes were decided according to personal law. Customs, convenience and expediency were most often the rules of decision. After the enforcement of the Act of 1962, the Muslim Personal law had been applied in the country except the tribal area with a statutory sanction as laid down in section 2 of the said Act.
This Act was an improvement on Muslim Personal Law (Shariat Application) Act of 1937, inasmuch as according to provision of 1962 Act no declaration was required from a person seeking the benefit of Muslim Personal Law. Section 2 of the Muslim Personal Law (Shariat Application) hereafter referred to as Act of 1962 is reproduced below : "2. Application of the Muslim Personal Law.-Notwithstanding any custom or usage, in all questions regarding succession (whether testate or intestate), special property of females, betrothal marriage, divorce, dower adoption guardianship, minority, legitimacy or bastardy family relations, wills, legacies, gifts religious usages or institutions including waqfs, trusts and trust properties, the rule of decision subject to the provisions of any enactment for the time being in force shall be the Muslim Personal Law (Shariat) in cases where the parties are Muslims."
As will be seen from this provision, Muslim Personal Law will be the rule of decision in all cases dealing with subjects mentioned in section 2 of the Act itself subject to any enactment for the time being in force. The words 'subject to any enactment for the time being in force' mean enactments dealing with any of the subjects mentioned in section 2 of the Act and examples of such enactments can be the Muslim Family Laws Ordinance, 1961, Muslim Waqfs Validating Act, 1913 the Muslim Waqfs Act, 1923 the, Charitable and Religious Trusts Act, 1920, the Child Marriage Act, 1939 etc. The words "subject to the provisions of any enactment for the time being in force" would not mean and include the provisions of Arbitration Act. On the principles of ejusdum generis the enactment referred in section 2 should be in respect of the matters enumerated therein i,e, marriage, divorce, Wills, Waqf etc. It follows that where the dispute is regarding or relating to any of the subjects mentioned in section 2 of the Act of 1962, the rule of decision shall be Muslim Personal Law (Shariat). The 1962 Act has paved a way for decision of all matters in disputes relating to these subjects in accordance with Shariat. By incorporating the Baluchistan Civil Disputes (Shariat Application) hereafter mentioned as the Regulation, Snariat became the prevailing law of the area in all Civil Disputes where this Regulation is in force. The provisions of section 2(1) of the said Regulation are as under :- "2. Aadjudication of Civil disputes according to Shariat.-(1) Notwithstanding anything to the contrary contained in any law for the time being in force or any custom or usage, all disputes of a civil nature, where the parties are Muslims, shall be decided in accordance with Muslim (Shariat)
Law : ' Provided that nothing in this subsection shall apply to cases by. Or against the Federal Government or a Provincial Government or a Local Authority or a public Corporation or a public servant acting in the discharge of his duty."
This is an improvement on 1962 Act and now it is incumbent and obligatory for the Court to decide all civil disputes where the parties are Muslims according to Shariat. There are two marked differences between the provisions of the Act of 1962 and the Regulation of 1976 as will be noticed.
The Act of 1962 applies only to cases regarding disputes of the nature specified in section 2 of the Act while the Regulation embraces all cases of civil disputes. After the promulgation of the Act of 1962, in cases involving disputes of the nature specified under section 2 of the Act, rule of decision is to be Muslim Personal Law subject to the provisions of the enactments for the time being in force.
The position is different under the Regulation as the rule of decision shall be Shariat notwithstanding anything contained to the contrary in any law for the time being in force. However, the same result flows as to the rule of decision, from both enactments as far as the matters relating to marriage, divorce etc. Are concerned. The Act and the Regulation both make identical provisions for trial of cases relating to these subjects and these cases are to be decided according to the dictates of Shariat. The Rule of decision in such case being Shariat, arbitration would be regulated by law or provided in the Holy Qur'an.
5. Mr. Aslam Chishti had referred to certain case-law in support of his contention that arbitration was permissible in matrimonial disputes. In the case of Nathu and another v. Sarnum (1), the observation was as under :- "It is not competent to the Court to delegate to arbitrators a suit for the restitution of conjugal rights such question being entirely one for the discretion of the Court."
' In the case of Rup Narain v. Mst. Nandrani and another (2), it was held that a suit for restitution of conjugal rights could be referred to Arbitration. Again, in the case of Walla Ramudamma v Nalla K.Rsi Naidu (3), it was held that matrimonial disputes could be referred to Arbitration
(1) AIR 1933 Lah. 532 (2) AIR 1954 Oudh 494
(3) AIR 1945 Mad. 269 under section 21 of Arbitration Act of 1940. In the case of Mt. Kunti Devel v. L. Bhola Ram (1), the view taken was as under :- "The question whether a person should be given a decree for restitution of conjugal rights against his wife is a matter in difference between the husband and wife in suits for restitution of conjugal rights and there is nothing in Sched. II, Civil P. C., to prevent a reference of the whole suit. For restitution of conjugal rights to arbitration and to a decree being passed in accordance with the award [Case-law referred]."
' In these cases different views have been taken by the Courts in the subcontinent. The cases have been decided with reference to the provisions of arbitration as then contained in Schedule II to the Code of Civil Procedure or the Nrbitration Act of 1940 but without any reference to the Qur'anic Law.
The majority view is that matrimonial disputes whether the parties are Muslims or non-Muslims could be referred to arbitration under the provisions of Arbitration Act, .940.
' Mr. Basharatullah contended that the provisions of Arbitration Act will apply to arbitration done under the injunctions of Qur'an.
6. After the promulgation of the Act of 1962, the position has been! Crystallized and matrimonial disputes where the parties are Muslims can ts be referred to arbitration without having resort to the provisions of the Arbitration Act of 1940 as will be seen hereunder. It will be appropriate to reproduce sections 46 and 47 of the Arbitration Act of 1940.
S. 46 Application of Act of statutory arbitrations.-The provisions of this Act, except subsection (1) of section 6 and sections 7, 12, 36 and 37, shall apply to every arbitration under any other enactment for the time being in force, as if the arbitration were pursuant to an arbitration agreement and as if that other enactment were an arbitration agreement, except in so far as this Act is inconsistent with that other enactment or with any rules made thereunder. S. 47 Act to apply to all arbitrations.-Subject to the provisions of section 46, and save in so far as is otherwise provided by any law for ii the time being in force, the provisions of this Act shall apply to all arbitrations and to all proceedings thereunder : ' Provided that an arbitration award otherwise obtained may with the consent of all the parties interested be taken into consideration as a compromise or adjustment of a suit by any Court before which the suit is pending."
By virtue of sections 46 and 47 of the Arbitration Act, the provisions of the Act would apply to every arbitration under an agreement or under any other enactment for the time being in force, of course subject to the control of section 46 of the Act. Enactments referred to under section 46 of the Act are made by legislators while laws expressed in the Holy Qur'an are E given by Allah. When arbitration is resorted to under the law of the Qur'an, it is neither an arbitration under an agreement nor under a statute and so provisions of Arbitration Act will not be attracted to such an arbitration. The provisions regarding matrimonial dispute are given in Sura-e-Nisa Verse No, 35 which is as under :
(1) AIR 1941 Pesh, 43 {{URDU TEXT}} There is no dispute as to the appointment of Hakams or Arbitrators. The concept of arbitration as available in Sura Nisa is different from that found in Arbitration Act of 1940. According to the provisions Arbitration Act of 1940 there are three essential features of Arbitration. Firstly, there should be a dispute between the parties, secondly there should be an agreement between the parties to refer the case for the decision of a third person and thirdly there should be a decision by that third person. In case of statutory arbitration, the provisions in the statute take the place of the agreement according to section 46 of the said Act. Where arbitration by agreement or under a Statute is provided for, provisions of section 47 of the Arbitration Act would apply. Arbitration contemplated under Sura Nisa is different from the general concept of Arbitration as provided for and regulated under the arbitration Act, 1940.
7. The words {{ARABIC TEXT}} have been addressed to the community and since there has been a functional classification and compartmentalization it has to be found out as to how the directions given can be complied with. Cases regarding matrimonial disputes are tried by a judge and in tribal areas by a Qazi. He will be the appropriate person because finally disputes are taken to a judge or a Qazi. Such disputes cannot be referred to any other functionary of the State and as such Qazi is the "
' . With respect, I avail the benefit of the view of their Lordships of the Supreme Court in the case of Mst. Khurshid Begum v. Muhammad Amin (1). In this case their Lordships of the Supreme Court have held that the words {{ARABIC TEXT}} have been addressed to the community or (those in authority among you) including the Qazi. In that case reference has been made to various commentators and authorities as shown at page 115. The observation are hereunder :- "We may first consider the opinions of the commentators of the Quran as to the meaning of these verses bearing on Khula. The words {{ARABIC TEXT}} (if you fear) are addressed to the community or {{ARABIC TEXT}} (those in authority from among you) and include the Qazi who represents the community for adjudication of disputes. This is borne out from the commentary of the Qurtabi known as {{ARABIC TEXT}} "Al Ja'mo-le Ahkaam al-Qur'an. "The learned author says that this is the opinion of Ibn-e-Abbas and Malik Bin-Anas as well as the manoirty of the legists. Similar opinion is expressed by {{ARABIC TEXT}} Zanakhshri in this well-known commentary {{ARABIC TEXT}} (Alkashaf), by {{ARABIC TEXT}} Nasafi in his Tafseer called (J.J.31:31 (Mandarak-ul-Tanzila Haqaiq- ul- Tafiveel), by Baizavi {{ARABIC TEXT}} in his Tafsir{{ARABIC TEXT}} Anwar-ul-Tanzil wa Israr-ul- Ta'veel by {{ARABIC TEXT}} (Al Qastallani) in his {{ARABIC TEXT}} ) (Irshad-us-Sazi), by Jassas in his (Ahkamul- Qur'an) and by the Authors of (Tafsir Ibne Kasir)
(1) PLD 1967 SC 97 and 036 (Tafsir Khazin). Baizavi distinctly says that this is so because the rulers are in a position to give orders when disputes are presented before them. In more recent times, Mufti Muhammad Abduh of Egypt, in his Tafsir Al Manay 01.11 has endorsed this view. For analogy the cases of {{ARABIC TEXT}} ) (Li'an) and (A. I ) (Illa) (Inin) and Mafboodel Khabar {{ARABIC TEXT}} may be cited in which cases the Qazi it is settled has the authority to separate the spouses, even if the husband is refusing to grant a divorce or is not available. The He daya, the {{ARABIC TEXT}} (Radd- ul-Mukhtar) and the {{ARABIC TEXT}}(Ahkamul-Quean) of {{ARABIC TEXT}} (Aljasas) agree in this respect."
After the pronouncement of the Supreme Court in Khurshid Bibi's case there would be no doubt left as to who could appoint arbitrators in matrimonial disputes and in the present case it was the Qazi who could act in this behalf. Copy of the agreement between the parties is Annexure `C' to the petition. For arbitration of the matrimonial dispute between the parties arbitration could be resorted to by the Kazi according to Shariat even without this agreement. Under the Qur'anic injunctions the arbitrators are appointed in the discretion of the Qazi or{{ARABIC TEXT}} i,e, The" person in authority and is not purely and simply a consensual jurisdiction conferred by agreement unlike arbitration under the Act where it is under an agreement or statute. It was incumbent upon the Kazi to resolve the dispute between the parties through arbitration and in case of failure of arbitration to give his own decision. It is a legal obligation that efforts, should be made by the arbitrators to resolve the differences between the parties and to strive for a conciliation.
8. The next question which would arise in this context would be the mode of appointment of the arbitrator and the powers of the arbitrators. The Qazi or the{{ARABIC TEXT}}is supposed to have two arbitrators one each from the families of the spouses. Intention is that in such case the arbitrators being representative of families of the spouses will be in a better position so exert more influence on the parties and as Such reconciliation would be easier between the disputing parties and its effects would be more lasting.
9. There has been divergence of opinion between jurists as to the powers of arbitrators appointed by the Qazi. Some are of the view that the arbitrators so appointed had no authority to dissolve the marriage while others maintained that the arbitrators have authority to bring about reconciliation and if that is not possible the arbitrators can dissolve the marriage.
' According to ( &It) the arbitrators of appointed have the power to bring about reconciliation between the spouses and also direct separation should circumstances demand. The learned author had referred to two cases, one during the caliphate of Hazrat Usman and the other in the days of Hazrat Ali. In these two cases the arbitrators were given full authority to bring about conciliation between the husband and wife or separate them. In the case before Hazrat Usman, the arbitrators were Hazrat Ibni Abbas and Hazrat Ameer Mavia. They were given the mandate to resolve the dispute and order separation if necessary. Hazrat Ameer Mavia was not in favour of separation. It is not known as to what ultimately happened in the case. As regards the case which came up before Hazrat Ali consent of parties was obtained before investing the arbitrators with power for dissolution of marriage. These precedents also do not show that the arbitrators had inherent power to dissolve the marriage between contending parties. Further Ibin Kasser has referred to the dissenting views of Hazrat Hussain Basri, Hazrat Fatada, Zaid-Bin-Aslam and Imam Ahmad who maintained that arbitrators would not order separation. Hazrat Imam Abu Hanifa and his disciple have also been of the view that arbitrators could not dissolve the marriage. In Tafseer Mazhari the portion of Sura Nisa {{ARABIC TEXT}} has been interpreted so as to give full authority to the arbitrators for both reconciliation/ and separation but in the same context the commentator says that Hakams (Arbitrators) by virtue of their own authority cannot order separation. In Tafseer Haqani the majority view is adopted that arbitrators did not possess any authority to direct separation of their own. Maulana Muhammad Shafi also expostulates the same view. There is consensus of opinion that the arbitrators could not direct separation. This view is also supported by the case before Hazrat Ali. The woman appearing. Before him had given full authority to the arbitrators but the husband was reluctant. Hazrat Ali then asked the husband to give the same authority to the arbitrators as was delegated by the woman so that none of the parties might be at a disadvantage. The arguments advocated by the Jurists of the majority view is borne out by the decision of Hazrat Al' inasmuch as that the authority had to be given by the parties to the arbitrators for separation and in that case only the arbitrators could effect a separation between the parties. The authority to order separation is to be invested in the arbitrators by the parties. The delegation of authority by the husband to a third person is not unknown in Islam. A person can delegate such authority even to his wife and a separation brought about in such manner is recognized as regular and is known as Talaq Tafweez. The Hakams having been appointed by the Qazi can pronounce divorce if they are so authorized otherwise not.
Marriage under Islam is a civil contract and cannot be lightly annulled. A Talaq pronounced by insane person or a minor or a person during intoxication is not valid. To make it effective it has to be shown that the person was not deprived of his normal senses or was not suffering from any disease which amounted to Marz-ul-Maut. This will show that this man should be fully conscious of M the consequences that flow from Talaq to make it valid and binding. It has been stressed that the husband pronouncing Talaq should fully realize (Reference Mohammadan Law Syed Ameer Ali pp. 432 and 433, Seventh as to what he is doing. Unless Talaq is preceded by circumstances which make it necessary it has been looked with disfavour by certain Jurist. Edition). A Talaq or delegation of power to pronounce Talaq should be clear and in unequivocal expression of the intention of the husband. The majority view is to be followed as it appears that by appointment of arbitrators from the families of the parties object was to regenerate conditions conducive to better and amiable conjugal relations. The first object N of resorting to this procedure is to avoid a rupture of conjugal union and bring about reconciliation and improvement in relations before a marriage is perforce dissolved.
9. Reference to arbitration under the Arbitration Act can proceed without intervention of the Court while under the Shariat there is no concept of arbitration without intervention of the authority i,e, (,Si 7-A4 WI ) including the Qazi. Under the Arbitration Act of 1940 arbitration proceedings were initiated on the agreement and motion of the parties or by operation of law while under Shariat it entirely proceeds on the basis of the authority of the Qazi. According to sections 46 and 47 of the Act its provisions apply to all arbitration made under any enactment for the Tim being in force.
Arbitration as provided under the Qur'anic Verse could not be an arbitration within the meaning of sections 46 and 47 of the Arbitration Act and as such arbitration done under Shariat will have its own procedure without application of the provision of the Arbitration Act. While dealing with arbitration under SURA NISA the Qazi and the arbitrators however will have to follow the rules of natural justice and will not act in any manner so as to offend such principles.
10. In the instant case the parties appointed four arbitrators. It is not shown that these arbitrators belonged to the families of the spouses. Be that as it may, appointment of outside arbitrators would not be illegal but merely irregular (Reference. Dr. Tanzeel-ur-Rehman page 645). Main thing to be seen is as to what was the import of the mandate given to the arbitrators. Although here the agreement gives full powers to the arbitrators to decide the matter in any manner they thought proper and the parties bound themselves by such decision, there is no express provision for pronouncement of Talaq or separation. In this agreement there would be an implied power to pronounce Talaq but as observed above the powers should be expressly delegated. Since the agreement filed before the Qazi does not purport to give express authority to dissolves the marriage or order separation as such authority shalt be deemed to have been delegated. The judgments of the Qazi and Majlis-e-Shoora are defective in this respect and are not sustainable.
The revision is allowed and both the judgments are set aside. The trial Court is directed to proceed with the trial of the case according to law.